G.O.P. comes up 8 votes short on Owen
May 2, 2003, FridayBy NEIL A. LEWIS, New York Times
WASHINGTON, May 1 -- The battle over judicial confirmations escalated today as Senate Republicans failed to end a filibuster by Democrats blocking a vote on President Bush's nomination of Priscilla R. Owen to a seat on a federal appeals court.
The Democrats said that as a justice of the Texas Supreme Court, Justice Owen has allowed her anti-abortion and pro-business personal views to color her judicial opinions. When Senator Bill Frist of Tennessee, the Republican leader, moved to end the filibuster, he fell 8 votes short of the 60 needed.
Two Democrats, Senators Zell Miller of Georgia and Ben Nelson of Nebraska, joined the 50 of the 51 Republicans who voted today.
The Democrats, who have argued that President Bush is trying to pack the court with conservative ideologues, have now taken the highly unusual step of using filibusters to block two of the president's appeals court nominees. A filibuster blocking a confirmation vote on the nomination of Miguel Estrada, a Washington lawyer, to an appeals court seat in Washington will soon enter its fourth month.
"With Judge Owen, the record is crystal clear,'' said Senator Charles E. Schumer, Democrat of New York. ''In instance after instance, she has not subjugated her own feelings but let them dominate her decision making. That is not what a judge ought to be doing."
Republicans took a starkly different view, though one expressed with the same emotional intensity as their Democratic counterparts.
"I think a great injustice has been done today," said Senator Kay Bailey Hutchison, Republican of Texas. "A wonderful person, an academic judge, a person who has all the qualifications has been turned down today. And most of all, a person who has shown her judicial temperament by the ordeal that she has been through and her demeanor during that ordeal. She has shown class."
At the center of the debate about Justice Owen's fitness for the bench is her dissent from a ruling in Texas interpreting the state's law allowing a teenager to obtain an abortion without notifying her parents if she can show a court that she is mature enough to understand the consequences.
In the dissent, Justice Owen said the teenager in the case had not demonstrated that she knew that there were religious objections to abortion and that some women who underwent abortions had experienced severe remorse.
One of the other justices on the court at the time was Alberto R. Gonzales, now the White House counsel. He wrote that the reading of the law by the dissenters was "an unconscionable act of judicial activism."
Justice Owen has said that Justice Gonzales was not referring to her. Mr. Gonzales has, in interviews, acknowledged he was referring to her and said that his description of her as a judicial activist was merely heated language among judges who disagreed.
While the first floor fight over the Owen nomination was occurring, another judicial nomination drama was being played out across the street in the Judiciary Committee, which was considering President Bush's nomination of J. Leon Holmes to be a district judge in Arkansas.
Senator Orrin G. Hatch, the Utah Republican who is chairman of the committee, did not ask for a vote on approving the Holmes nomination as is customary. Instead, he took the extraordinary step of asking that the committee vote to send the nomination to the full Senate without a recommendation.
Mr. Hatch was apparently concerned that some Republicans on the committee were not completely comfortable with the nomination after disclosures that Mr. Holmes, an ardent opponent of abortion, had made several notable comments about the role of women in society.
In 1997 Mr. Holmes wrote that "the woman is to place herself under the authority of the man." He had also written that abortion should not be available to rape victims because conceptions from rape occur with the same frequency as snow in Miami. Most of the combat over judicial confirmations has been over appeals court judges, the level just below the Supreme Court, and the nomination of Mr. Holmes to the trial court had initially attracted little notice.
But at a committee session last week, Senator Dianne Feinstein, Democrat of California, said that she had never voted against a district court nominee but that she found Mr. Holmes's remarks shocking.
"I do not see how anyone can divine from these comments that he has either the temperament or the wisdom to be a judge," Senator Feinstein said. Senator Hatch said today that he was concerned about some of those remarks and that Mr. Holmes had expressed regret for some. But the most important factor, the senator said, was that many people in Arkansas, including the state's two Democratic senators, Mark Pryor and Blanche Lincoln, still supported the nomination.
